Opinion
CASE NO. 1:06-cv-00112-MP-AK.
December 10, 2008
ORDER
This matter is before the Court on Doc. 14, Report and Recommendation of the Magistrate Judge, recommending that the petition in this case be denied and this case dismissed. The Petitioner filed objections, Doc. 16, which the Court has reviewed. The Court agrees with the Magistrate Judge that as to the claim relating to the denial of his motion to suppress, that claim is barred in federal court because Petitioner was afforded full and fair consideration of the claim in state court, in that he received a suppression hearing and appellate review.
The Court also agrees with the Magistrate Judge and the state courts that Petitioner cannot show prejudice from his counsel's failure to test his competence to stand trial because the only reason Petitioner raises to question his competency is that "he had been going through mental stress." That does not rise to the level necessary to find a lack of competency. Thus, counsel was not ineffective for declining to further the incompetency argument.
Finally, the claim of ineffectiveness which relates to counsel's failure to argue for a lower sentence based on actual innocence was not presented to the state courts. Thus, it is not exhausted. Since Petitioner offers no argument for cause and prejudice to excuse the lack of exhaustion, this Court will not address this claim. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Report and Recommendation of the Magistrate Judge is adopted and incorporated herein.
2. The petition in this case is denied, and this case is dismissed with prejudice.
DONE AND ORDERED.